1. ANALYSIS / APPLICATION
1.1. The "Open and Obvious" Rule
1.1.1. Question of Fact or a Question of Law?
1.1.1.1. COURT - Clear facts are laid out in the Joint Statement of Undisputed Facts and the testimony. No material Question of Fact exists, therefore, this is a Question of Law.
1.1.1.2. PLAINTIFF - Asserts that differences in the testimony between Plaintiff and Son demonstrate "different opinions and interpretations" of the stability of the stack creates a Question of Fact
1.1.2. Would a reasonable person consider the dangerous environment as "Open and Obvious?"
1.1.2.1. COURT - Based on the facts presented in the testimony and the Joint Statement of Undisputed Material Facts, a reasonable person would have concluded that a "obviously unstable" stack might fall over. Furthermore, the Plaintiff demonstrated his own apprehension in various ways, including by pausing collection of his purchase by 5 mins and notifying his son of the danger.
1.1.2.2. PLAINTIFF - plaintiff expressed apprehension about the condition of the leaning stack, not the risk of him or his son touching the stack.
1.1.3. Does the "deliberate encounter" exception apply?
1.1.3.1. COURT - No, the Plaintiff was not compelled by the circumstances to stand underneath the stack.
1.1.4. Does the "distraction" exception apply?
1.1.4.1. COURT - No, looking elsewhere does not indicate distraction
1.1.4.2. PLAINTIFF - Plaintiff was not looking at the stack when it fell
1.2. Whether a "Duty is Owed" Rule
1.2.1. Does Menards owe a duty?
1.2.1.1. COURT - Because regular inspections are performed and resources (employees) are available to assist customers if requested, imposing additional duty for continuous monitoring is onerous. Plaintiff also did not request assistance. Additionally, other safeguards are not justified because the danger is "Open and Obvious."
1.3. The "Exclusion of Supplemental Affidavit does not Warrant Reversal" Rule
1.3.1. Did the Supplemental Affidavit demonstrate the statement was "mistaken?"
1.3.1.1. COURT - When contradicting the deposition, the Supplemental Affidavit did not offer a valid explanation as to why the original statement was mistaken, and in some cases even reinforced the "open and obvious" danger.
1.3.1.2. PLAINTIFF - Affidavit clarified mistaken aspects of the testimony in various ways. For example, clarifying confusion over the time period when an exhibit was reviewed.
2. ISSUE
2.1. Were the unstable stacks "open and obvious" and if not, was the company liable for the injury?
2.1.1. Are the insulation stacks located in an environment where it can be presumed to be dangerous or injurious?
2.2. Is there duty owed by Menard's to the plaintiff?
2.2.1. Was the plaintiff aware that assistance of loading the insulation stacks was available?
2.3. Can a deposition statement be retracted if it conflicts with an affidavit?
3. RULE OF LAW
3.1. To establish a cause of action for negligence under Illinois law, the plaintiff (Dunn) must prove: 1. a duty owned to the plaintiff by the defendant 2. a breach of that duty 3. an injury proximately caused by the breach
3.1.1. The "Open and Obvious" Rule
3.1.1.1. The 4 factors courts typically consider in determining whether a duty exists are: (1) the reasonable foreseeability of injury (2) the likelihood of injury (3) the magnitude of the burden of guarding against injury (4) the consequences of placing that burden on the defendant
3.1.1.2. In Illinois, the "open and obvious" doctrine is an exception to the general duty of care owned by a landowner. This is because "persons who own, occupy, or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious
3.1.1.3. In cases involving obvious common conditions, the law assumes that people who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution, therefore, the risk of harm is considered slight; people are expected to avoid obvious risks
3.1.2. Whether a "Duty is Owed" Rule
3.1.2.1. If regular inspections are performed and resources (employees) are available to assist customers if requested, imposing additional duty for continuous monitoring is an onerous burden.
3.1.2.2. The plaintiff (Dunn) did not request assistance despite recognizing the risk and knowing such an option was available
3.1.3. The "Exclusion of Supplemental Affidavit does not Warrant Reversal" Rule
3.1.3.1. The circuit does not permit a party to create an issue of fact by submitting an affidavit whose conclusions contradict prior depositions or sworn testimonies
3.1.3.2. If a deposition testimony and affidavit conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken
3.1.3.3. Supplemental affidavits can be employed to clarify ambiguous or confusing deposition testimonies
4. 3 I'S
4.1. IMPACT
4.1.1. Mills v. Costco Wholesale Corp. District Court Illinois, 2019
4.1.1.1. Plaintiff (Mills) files a negligence action against Costco Wholesale Corp. alleging that the negligence of the company's employees at the Niles store location led her to suffer injuries when she slipped and fell in a large puddle of water outside the women's restroom.
4.1.1.2. Dunn v. Menard was cited in defense that "if a reasonable person with the Plaintiff's knowledge of the situation would have avoided the hazardous situation created by the Defendant's actions, then from the Defendant's perspective the Plaintiff's injuries were neither foreseeable nor likely" under the "Open and Obvious" rule.
4.1.2. Rosenberg v. Home Depot United USA, Inc., Circuit Court, Illinois 2019)
4.1.2.1. Plaintiff (Rosenberg) files a negligence action against Home Deport alleging that his foot contacted a fork life at the premises and fell while he entered the shopping isle.
4.1.2.2. The Plaintiff acknowledged that he noticed there was a forklift.
4.1.2.3. The Plaintiff made the assumption that the forklift was parked and since it was down, he could step over it, which he thought he did, but he did not.
4.1.2.4. Dunn v. Menard was cited in this case to support the notion that the Plaintiff was aware that he had to interact with the forklift to reach the item he wanted. He would have to step over the fork of the forklift or walk around it. The court concluded that the tripping hazard posed by the forks of the forklift followed the "Open and Obvious" Rule.
4.2. IMPORTANCE
4.2.1. Duty of Care:
4.2.1.1. People and organizations are legally obligated to avoid acts or omissions which could be reasonably foreseen to injure or harm other people.
4.2.1.1.1. An "organization" includes privately held and publicly traded companies. Businesses therefore have a duty of care to employees and customers, and must minimize acts or omissions which could be reasonably foreseen to injure or harm customers or employees.
4.2.2. Relationship between Business and Customer Safety:
4.2.2.1. This case clearly defined how liable a business is for customer safety. A company is not liable for "Open and obvious' danger that is present on company premises
4.3. INFLUENCE
4.3.1. Constant Monitoring and Open and Obvious danger:
4.3.1.1. This case ruled in the favor of Menard, and declared that the business could not possibly constantly monitor their warehouse. This case created precedence for the idea that businesses are not liable for "open and obvious" danger, and thus protected the business practice of having customers on site without being liable for "open and obvious" dangers present on site of their premises.
4.3.2. Workplace/Business Premisis Safety:
4.3.2.1. This case provides precedence for guidelines of workplace safety. Menard's had a good workplace monitoring system in place, and their careful safety monitoring can serve as a guideline for other businesses setting up safety monitoring programs. Their successful implementation of a thorough safety monitoring system minimized liability due to "non-open and obvious" dangers that could be prevented with correct monitoring and correction.
5. FACTS
5.1. Parties
5.1.1. Plaintiff: Larry D. Dunn
5.1.2. Defendant: Menards, Inc.
5.2. What Happened
5.2.1. January 3, 2014: Plaintiff and his adult son purchased rolled insulation at the Hodgkins Menards home improvement store.
5.2.2. Plaintiff picked up the insulation at a self-service warehouse. No Menards employee was present nor did he ask for assistance.
5.2.3. Warning sign stated: "For your safety, do not cut landings, do not open packages, do not pull, do not climb, and if you need assistance, please call".
5.2.4. Plaintiff noticed that one stack of rolled insulation was unstable, but did not seek assistance and loaded his car from other stacks. Plaintiff notified son of the unstable stack, and waited five minutes before attempting to load insulation.
5.2.5. The unstable, leaning stack fell and hit plaintiff which injured the plaintiff's right shoulder.
5.2.6. Incident report was filed.
5.2.6.1. Dunn provided an initial deposition and amended with a supplemntal affidavit.
5.2.7. General practice at Menards: daily safety walk by 5PM by the general manager. All managers and team members routinely monitor warehouses for safety issues.
5.3. Procedural History
5.3.1. May 5, 2015 - filed in the Circuit Court of Cook County by Dunn
5.3.2. Menards moved the case to the Northern District of Illinois
5.3.2.1. November 18, 2016 Granted judgement to Menards
5.3.2.1.1. Dunn filed a motion to reconsider which got denied
5.3.3. Dunn appealed to the United States Court of Appeals Seventh Circuit
6. CONCLUSION
6.1. The Plaintiff (Dunn) could not establish a claim of negligence under Illinois law as Dunn was unable to prove that there was: 1. a duty owed to the plaintiff by the defendant 2. a breach of that duty 3. an injury proximately caused by the breach
6.1.1. The "Open and Obvious" Rule
6.1.1.1. The Court ruled that the Plaintiff had no economic compulsion to ignore said risk and the Plaintiff acknowledged that he did not do anything to distract himself at time of incident, neither is an exception to the "Open and Obvious" danger rule applied.
6.1.1.2. November 18, 2016: The District Court granted summary judgement to the Defendant (Menards) on the grounds that the danger of the stack falling was "open and obvious" and it did not owe Plaintiff (Dunn) a legal duty.
6.1.2. Whether a "Duty is Owed" Rule
6.1.2.1. District Court found it a burden for the Defendant to provide constant monitoring of insulation stacks when the Defendant's employees were available to assist the Plaintiff in loading his van, yet he did not request assistance despite being aware that this offer was available.
6.1.3. The "Exclusion of Supplemental Affidavit does not Warrant Reversal" Rule
6.1.3.1. The court ruled that the Supplemental Affidavit did not offer a valid explanation as to why the original statement was mistaken, and in some cases even reinforced the "open and obvious" danger.